DECEMBER 12, 2016 VOLUME 23 NUMBER 46
Congress may be in a historic post-election lull, but the end of the year can sometimes see surprising, bipartisan progress. With passage by the U.S. Senate of the Special Needs Trust Fairness Act (a very small part of the 21st Century Cures Act) a significant change has been introduced into the world of special needs trusts. And it all comes down to the addition of two words: “the individual”. Let us explain.

Sometimes an individual with a disability will qualify for the Supplemental Security Income (SSI), Arizona Health Care Cost Containment System (AHCCCS) or Arizona Long Term Care System (ALTCS) programs, but not be able to receive benefits because their assets exceed the $2,000 limit generally applied for all of those programs. In that case, if the individual is under age 65, they might be able to establish a special needs trust and thereby qualify for benefits.

Actually, it’s not correct to say that they could establish a special needs trust. Until passage of the law last week, the special needs trust could only be established by the individual’s parent, grandparent or guardian — or by a court. A competent individual with a disability could not establish their own trust, and often had to go through a court proceeding (at considerable additional cost) before qualifying or re-qualifying for SSI or ALTCS.

The existing law (42 United States Code section 1396p(d)(4)(A)) said that such a trust could be established by “a parent, grandparent, legal guardian of the individual, or a court”. The Special Needs Trust Fairness Act amends that provision so that it permits establishment by “the individual, a parent, grandparent, legal guardian of the individual, or a court”.

The new law will become effective immediately upon President Obama’s signature, which is anticipated in the next few days. It will have no effect on existing trusts, since they will each have been established under the old law. It will, however, sweep away thousands of pages of qualifications, refinements and interpretations about whether a trust could be established by a parent who held a power of attorney, or whether an individual with a disability could file their own guardianship petition (or seek court approval of a trust in their own names).

This simple but powerful change was promoted by the Special Needs Alliance (two of the attorneys at Fleming & Curti, PLC, are members of that national group) and the National Academy of Elder Law Attorneys (all four of our attorneys are members). It has been a key component of legislative plans for the entire advocacy community. Its adoption is welcome news.

The change is just the latest in a series of incremental improvements in the eligibility rules for SSI, ALTCS/AHCCCS and other programs like public housing assistance. Among the changes: more logical (and consistent) treatment of special needs trust distributions among the different programs, creation of the ABLE Act (“Achieving a Better Life Experience” Act) program, allowing public benefits recipients to save more than the long-time $2,000 asset limitation for eligibility, and (partly as a result of the Affordable Care Act and its expanded Medicaid programs) increasing use of tax-based language in place of more peculiar Social Security Administration definitions.

One recent court case gives a good illustration of how this most recent change will benefit people with disabilities. A young South Dakota woman’s special needs trust, established by her parents (as required by the prior law), was invalidated largely because she had signed a power of attorney naming her parents as her agents. That, according to the Social Security interpretation, meant that they acted not as parents but as their daughter’s agents — making the trust defective. The new law should put an end to that type of game-playing.

There are still many individuals who will need a court to get involved to create a special needs trust. The new law, however, should make it easier — and considerably less expensive — to set up many special needs trusts.